New Trump cases overshadowed by shaky relationship with Supreme Court

“I’m not happy with the Supreme Court,” said President Donald J. Trump on January 6, 2021 “They like to rule against me.”

His assessment of the court in a White House speech urging his supporters to march on the Capitol had a significant element of truth to it.

Other parts of the speech were laced with rage and lies, and the Colorado Supreme Court cited some of those passages on Tuesday as evidence that Mr. Trump was involved in riots and could not be reinstated.

But Mr Trump’s musings on the US Supreme Court, in a speech filled with resentment and accusations of disloyalty, captured not just his point but an inescapable reality. A fundamentally conservative court with a majority of six Republican-appointed justices, including three appointed by Mr. Trump himself, was not particularly receptive to his arguments.

In fact, the Trump administration has had the worst record on the Supreme Court since at least the Roosevelt administration, according to data compiled by Lee Epstein and Rebecca L. Brown, law professors at the University of Southern California, for an article in the Presidential Studies Quarterly.

“We can’t tell whether Trump’s poor performance speaks to the court’s opinion of him and his administration or to the justices’ growing willingness to scrutinize the executive branch,” the two professors wrote in an email. “Either way, the data suggest a bumpy road for Trump in cases involving presidential power.”

Now, another series of Trump cases are in court or on its doorstep: one over whether he enjoys absolute immunity from prosecution, another over the viability of a central charge in the federal election meddling case, and a third, from Colorado, over whether he was barred from another term under the 14th Amendment.

The cases raise different legal questions, but earlier rulings suggest they could divide the court’s conservative wing along a surprising fault line: Mr. Trump’s appointees are less likely to vote for him in some politically charged cases, than Justice Clarence Thomas, who was appointed by the first President Bush, and Justice Samuel A. Alito Jr., who was appointed by the second.

In his Jan. 6 speech at the Ellipse, Mr. Trump spoke mournfully of his three appointees: Justices Neil M. Gorsuch, Brett M. Cavanaugh and Amy Coney Barrett, suggesting that they had betrayed him to establish their independence.

“I picked three people,” he said. “I fought like hell for them.”

Mr Trump said his nominees had abandoned him, blaming their losses on the justices’ willingness to participate in Washington social life and asserting their independence against accusations that “they are my stooges”.

He added: “And now the only way they can get away with it is because they hate it’s not good on the social chain. And the only way they can get out is to govern against Trump. So let’s govern against Trump. And they do.”

Mr. Trump has criticized Chief Justice John G. Roberts Jr. for similar reasons. When the chief justice cast the deciding vote to save the Affordable Care Act in 2012, Mr. Trump tweeted that “I guess @JusticeRoberts wanted to be part of the Georgetown community more than anyone knew,” citing a false information. During his presidential campaign, Mr Trump called the chief justice an “absolute disaster”.

When he spoke on Jan. 6, Mr. Trump was likely thinking about the heavy loss the Supreme Court had just handed him weeks earlier, rejecting a lawsuit from Texas that asked the court to throw out election results in four battleground states .

Before the ruling, Mr. Trump said he expected to prevail on the Supreme Court after bringing Justice Barrett to the court in October 2020 in part in the hope that she would vote in Mr. Trump’s favor in election disputes.

“I think it’s going to end up at the Supreme Court,” Mr. Trump said of the election days after the death of Justice Ruth Bader Ginsburg in September. “And I think it’s very important to have nine judges.”

After the decision, Mr Trump weighed in on Twitter. “The Supreme Court really let us down,” he said. “No wisdom, no courage!”

The decision in the Texas case was not entirely unanimous. Justice Alito, joined by Justice Thomas, made a brief statement on a technical matter.

Those same two judges were the sole dissenters in two cases in 2020 seeking access to Mr. Trump’s tax and business records, which were sought by a New York prosecutor and a House committee.

The general trend continued after Mr. Trump left office. In 2022, the court refused to block the release of White House records about the Jan. 6 Capitol attack, effectively rejecting Mr. Trump’s claim of executive privilege. The court’s order upheld an appeals court ruling that Mr. Trump’s desire to preserve the confidentiality of internal White House communications was outweighed by the need for full reporting of the attack and the decertification of the 2020 election count.

Only Justice Thomas dissented. His participation in the case, despite efforts by his wife Virginia Thomas to annul the election, drew sharp criticism.

Mr. Trump’s shaky court record offers only hints of how the justices will approach the cases already before them and on the horizon. His claim of absolute immunity appears vulnerable based on other court decisions regarding the scope of presidential power.

The case, which examines whether one of the federal laws invoked by the special counsel in the federal election interference case, which makes it a crime to corruptly obstruct official proceedings, does not directly implicate Mr. Trump, although the court’s ruling could undermine two of the charges against him.

The justices have been skeptical of broad interpretations of federal criminal statutes, and arguments in the case will no doubt involve careful parsing of the statute’s text.

The most difficult case to assess is the one from Colorado, involving a host of new questions about the meaning of an almost entirely untested clause of the 14th Amendment that could prevent Mr. Trump from being president. The case is not yet in the Supreme Court, but it will almost certainly arrive in the coming days.

Guy-Uriel E. Charles, a Harvard law professor, said the justices would have to act.

“The Supreme Court is a contested institution, but it is the only institution that can judge and try to deal with this problem that needs a national solution,” he said. “There is some loss of faith in the court, but even people who are deeply hostile to it believe it should step in.”

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